- Legal practitioners have a positive duty to assist the Court. The Full Federal Court and the NSW Court of Appeal have defined the scope of this duty to include assisting the Court to understand an unrepresented litigant’s claims.
- When considering adverse steps against an unrepresented party, legal practitioners should be aware that it may also be necessary to draw the Court’s attention to the weaknesses in their own client’s case.
The adversarial system works best when all parties are legally represented and the parties are able to make informed judgments about how to progress a matter. When one party is unrepresented, tensions and competing obligations inevitably arise.
A number of cases have stated that the Court has a duty to advise and assist the unrepresented litigant, at least to the extent required to ‘diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and the untutored …’ (Rajski v Scitec Corporation Pty Ltd, Court of Appeal, 16 June 1986, unreported (at ) per Samuels JA).
In such situations, legal practitioners acting for a client in a dispute with an unrepresented party must similarly balance their obligations to act in the best interests of their own client with their duty to the Court to achieve the correct result.